As a lawyer I am in a problem-solving industry. I much prefer to be on the problem prevention side than having to help my clients clean up the mess they find themselves in, but I try to help when and where I can.

The last few months have been particularly frustrating. I’ve seen multiple situations where problems could have been prevented if the people involved had fully thought the situation through, called a lawyer to help them record their agreement in writing (and had the provisions they didn’t think about in advance), and signed their contract. Let me be clear – I’m not mad at my clients or prospective clients. I give them credit for realizing they are in over their heads and asking for help. The frustrating part is knowing that they are in difficult situations that could have been prevented.

Well written contracts are business gold. They put everyone on the same page from the beginning of the relationship and they outline how the parties will deal with problems when they occur.

I wonder what some people are thinking when they work without a contract or with a poorly written contract.

“We were too excited about the project to worry about a contract.”

“We were on a deadline.”

“I didn’t think we needed a contract.”

“The template I found online looked good enough at the time.”

“Hiring a lawyer is too expensive.”

All of these are crappy excuses not to have a contract or to have an ineffective one. A responsible entrepreneur is thoughtful enough to know what their needs are including an awareness that they will be dealing with more pain if they have to clean up the mess compared to doing it right the first time. And if the person you’re working with doesn’t understand the value of having a legally sound contract written by someone who knows what they’re doing, I would have serious reservations about working with that person. I thoughtful entrepreneur knows it is a better use of their time and money to hire someone to draft a contract at the beginning of a project than to try to do it themselves and have to hire a lawyer later to clean up the mess they created for themselves.

More entrepreneurs need to hear and to realize, that even though they might be running a solo shop, they never have to deal with a situation alone. They don’t have to have all the answers all the time. It’s ok to ask for help. In fact, it’s a sign that you are a good entrepreneur when you play to your strengths and you let other people use their best skills on your behalf. This requires a high degree of self-awareness and humility.

Gary Vaynerchuk and his team made an awesome video about self-awareness as an entrepreneur. I regularly watch it as part of my journey as a business person.

Kickstarter is a crowdfunding platform. People can launch a project they need funding for and backers and pledge a specified amount of money to support it in exchange for a benefit listed on the project’s page. The creator has to state their fundraising goal and deadline on their project page and backers only have to pay if the goal amount is reached.

Kickstarter provides a forum for people needing funding and potential backers to find each other. They don’t really get involved beyond that. Kickstarter makes to guarantee that the creator will follow through on their obligations to complete the project and they stay out of disputes between creators and backers except to assist law enforcement with fraud investigations.

In the new terms of service, Kickstarter still doesn’t get involved in disputes but they provide guidelines regarding what should happen if a creator can’t complete their obligations. The new terms say, “If a creator is unable to complete their project and fulfill rewards, they’ve failed to live up to the basic obligations of this agreement. To right this, they must make every reasonable effort to find another way of bringing the project to the best possible conclusion for backers.”

When a project is funded, it creates a contract between the creator and backers. If the creator doesn’t perform as promised, they’ve breached the contract and must amend the wrong. I think these new terms are an acknowledgement that Kickstarter realizes their users are beginners in the business world, and so it’s helpful to provide this additional information and guidance for situations when a creator can’t follow through after being funded.

Hat tip to Kickstarter for replacing the legalese in the previous terms of service with everyday language. The new verbiage and the layout of the terms are much more user-friendly and appropriate for your audience. I wish more sites were like this.

I got lots of messages last week when it came out that General Mills’ legal terms said that if you downloaded their coupons, connected with them on social media, entered a contest, or purchased any of their products that you agreed to resolve all disputes with the company through binding arbitration or informal negotiation via email.

And everybody lost their minds.

I can understand requiring arbitration for disputes related to contests. I write terms of service for websites all the time and I also include a dispute resolution where my client specifies where, how, and using which state’s law problems will be resolved. I would never tell a client to write their terms in a way that dictates how they’re going to resolve problems that are not related to a website.

I think it’s ridiculous that they’d even try to tell consumers that making a purchase forces them to resolve disputes in arbitration unless those provisions are available on the packaging and in print that might make a consumer take notice. I’ve never thought to examine a cereal box for contract terms.

Thankfully General Mills saw the light and reversed its decision and voided the offensive terms this past Saturday. In a blog post, General Mills spokesperson Kirstie Foster wrote, “No one is precluded from suing us by purchasing our products at a store, and no one is precluded from suing us when they ‘like’ one of our Facebook pages.”

General Mills still supports arbitration for resolving disputes and I understand why. It can be a faster and more cost-effective way to resolve problems. However, some disputes are better left to litigation where there is the option to pursue a class-action lawsuit when the situation warrants it.

We agree to contract terms all the time. Every time we click the “I agree” button for an online service or to create an account on a social media platform, we are agreeing to the terms of the contract (even if we don’t read the terms). The next time you go to a concert or a professional sporting event, flip over your ticket and read the fine print on the back. That’s a contract. I have no problem with these contracts as long as they make sense for the situation and don’t overreach into scenarios where it would be unreasonable for the terms to extend.

My Neighborhood Whataburger

For example, I recently heard that there was a sign at a Whataburger restaurant that put consumers on notice that by eating in the restaurant, they agreed to resolve all disputes related to their dining experience via arbitration. I tried to confirm this but I didn’t see such a sign in my neighborhood Whataburger. I visited their website and didn’t see such a provision; however, I was perturbed to see terms and conditions that said:

By giving us permission to use your post or tweet, you agree that we may, at our discretion, use your real or social media user name and the content of your post or tweet (including all accompanying images) on our website to promote our company, products and services for such time period as we wish. You give us the right to edit your post or tweet for brevity, clarity and the like and to modify any image in any manner we deem necessary to use it on our website. You will not have the advance right to review or approve what we post on our website….You will not receive any compensation for granting us the above rights. We agree that you may withdraw the permission you have given us at any time by sending us an email at customerrelations@wbhq.com.

Whataburger’s Facebook page says they can use anything you post on their page but I didn’t see any similar verbiage on their Twitter profile. I think they’re trying to set themselves up so they can use anything you post about the company on social media, including editing it which I’m not too keen about the verbiage they used.

I love contracts. I know this makes me a big legal dork, but I love writing them and reviewing them.

A contract is the documentation of how a relationship is going to work and as long as the provisions aren’t illegal, you can put in whatever you want. There’s a lot of room for creativity, and I wish more people would take advantage of it. I was tickled pink earlier this year when I got to use the phrase “sexy bitch” in a contract. Granted, this was a contract between another legal blogger and me, so we had more license to have fun with it once we got the essential verbiage down.

I worked with a woman earlier this year who was writing the terms of service for her website. She was overwhelmed and confused when she read other sites’ terms but relaxed when I explained what all the legalese meant and that she could write terms that were simple and in layman’s terms, similar to what Reddit does. A few months ago I walk talking with a business owner who was frustrated when his co-owner cancelled their meetings. Since they were both fans of craft beer, I suggested they put a provision in their operating agreement that the penalty for cancelling a meeting for a non-emergency would be a growler of beer.

I did some digging and here are some of my favorite crazy provisions I’ve heard about in other contracts.

Michael Jordan’s contract with the Chicago Bulls said he could play basketball anytime anywhere. He could play in exhibitions, pick-up games, etc. Apparently, he is the only player general manager Jerry Krause gave this provision to. I suspect other professional athletes have a lot of limits put on their activities to prevent injuries.

The Houston Astros promised pitcher Roy Oswalt a bulldozer if they won the 2005 National League Series. The Astros won and the team gave Oswalt a Caterpillar D6N XL as promised.

Van Halen’s rider required concert venues to provide the band with a bowl of M&Ms but no brown ones. This provision was quite ingenious. Van Halen’s show was a huge production that used 850 par lamp lights and at the time most venues weren’t used to them. If the band arrived and there were brown M&Ms in the bowl, it showed that the venue may not have read the contract carefully enough and they would do an additional check to make sure everything for the show was put up properly.

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